Paul's Internet Landfill/ 2015/ Toboganning and Liability

Tobogganing and Liability

Another day, another kneejerk rant against an episode of The Agenda. This time I got irritated with an episode called Liability Chill The short summary is that municipalities are prohibiting tobogganing activities because they are getting sued; recently the City of Hamilton spent a million dollars on a lawsuit because somebody hit a culvert and cracked his vertebrae. An arbitrator ruled against the city, and now municipalities don't want the risk.

The panellists talked about the need for provincial regulations. They spent a lot of time pointing fingers at each other, and arguing whether other cities should be frightened. They argued whether there was enough signage in the area, and whether signage was sufficient to protect against liability.

I was frustrated less because the panellists said idiotic things and more because the entire situation is frustrating. Here is an assortment of random frustrations I felt.

First of all, tobogganing is not safe and has never been safe. It can be fun and exciting, but people can and do get hurt. I have been reluctant to toboggan precisely because I know somebody in real life who has suffered a tobogganing injury, with associated long-term consequences. At the end of the podcast Steve Paikin asked "why did these things never happen when we were kids?", but of course injuries did happen even when he was a kid.

One of the panellists said that only two successful payouts were made. The issue is that the cost for getting sued is so high that municipalities do not want to take the risk. Fair enough, but on the one hand municipalities put up all kinds of restrictions on doing fun things, and on the other side public health officials exhort us to exercise more and be less sedentary. This is a really bad situation; nobody sues the municipality when kids sit at home playing video games, but when people are active outside then liability risk goes way up and municipalities get cold feet.

This issue comes up again and again. There are all kinds of public spaces that could be used in creative and efficient ways, but insurance concerns keep getting in the way. Insurance serves some purpose in inhibiting us from doing ridiculous things, but there are lots of uses which are prohibited but not ridiculous. It makes me really, really mad, especially when municipalities then turn around and blame us for not exercising enough or not building enough local community. Something has to change around the insurance situation.

There was other victim blaming going on as well. The representative from Hamilton was pretty unsympathetic towards the claimant; at one point he speculated that the claimant was "thin skulled". Even though it is a bad thing for municipalities to get sued when somebody gets hurt tobogganing it is also a bad thing when people get hurt, and we should acknowledge that these injuries can be debilitating.

So should people not toboggan? That is not clear at all, but the thought experiments get ugly. If nobody toboggans or engages in other risky outdoor activity (and pretty much any exercise has risk -- I have hurt my knees permanently thanks to skating at City Hall) then they stay sedentary and suffer other less litigious diseases like diabetes and heart disease (and knee problems due to obesity, natch). So the cost of having an active and overall healthier society is that some people will get seriously hurt. Is that an acceptable tradeoff? Is it acceptable that those people who do get hurt should be entitled to be compensated by the state?

Then there is the issue of signage, which is one of the most frustrating aspects of this debate. Institutions think that they reduce liability if they put up more signs, but this is insane. Thanks to liability anxiety, institutions put up signs to protect themselves more than they do to inform people of legitimately dangerous situations. When we are overwhelmed with signs then we stop paying attention to them, and when it is obvious that those signs are put up just to protect against liability then we ignore the signs even more. Signs serve a purpose in our society. When institutions put up signs to protect their own interests instead of genuinely protecting public safety, then they undermine their own purpose. I personally have not noticed an avalanche of signs in my public spaces, but boy howdy have I seen a tendency to put up signs in institutional ones.

Similarly, putting laws on the books ("Tobogganing is prohibited") just to cover liability is counterproductive. If you actually want to prohibit tobogganning and have the resources to enforce such a ban then go ahead; if you are just putting a law on the books to be ignored until lawsuits come up then you making our regulatory system even more broken than it is now. Ignorance of the law should not be a defense, but using that principle as a loophole by overwhelming us with more law than we can possibly learn is not fair either.

I don't know how to solve these issues. For all I know maybe they are non-issues, and I am just getting worked up because TVO has an interest in stirring up public indignation. But I found that this issue raised a bunch of issues that frustrate me a great deal, so now you get to suffer for it.